by Shawn Weber, JD, CLS-F* | Jun 4, 2018 | Uncategorized
I regularly serve as a pro tem settlement judge on the Mandatory Settlement Conference (MSC) Panel with the San Diego County Superior Court. While I enjoy helping folks through their MSCs, the help is simply too little too late for many people.
Often, the preparation for the MSC is nearly as stressful and costly as preparing for the trial itself for everyone involved including the attorneys, clients, and other professionals who may be involved.
Lawyers need to certify that discovery is complete and prepare elaborate briefs. Waiting until the very end of a case to attempt mediation does the parties and the professionals a great disservice. The pained and stressed-out expressions on the faces of the parties and counsel at the MSCs I facilitate say it all.
Better Options for Settling Cases: Early Mediation
If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay
There are many options near the beginning of the case to settle issues, manage discovery concerns, and resolve unnecessary conflict. Even (and especially) high conflict cases can benefit from earlier intervention with a mediator to short circuit the conflict. Attorneys benefit from early mediation because it helps them settle the cases with a realistic chance of settling successfully. It frees them up to focus on trials for cases that won’t settle.
Here are some ideas for how you can engage the ADR services of a mediator early in your family law case.
Meet and Confer – On Steroids
Every family law attorney is aware of the requirement for the “meet and confer” conference. Too often it’s simply given lip service by a short phone call to opposing counsel without discussing the issues. Because lawyers sometimes give less attention to what needs to happen to settle, the case stalls.
Why not have a facilitated meet and confer settlement conference to identify the issues and formulate a plan for a swift conclusion?
Discovery Management At Lower Cost
Often the most expensive part of a case is the discovery, which involves elaborate and arcane procedures to gather as much evidence as possible. Sometimes this takes place whether the case needs the information or not. The adversarial process spurs less and not more cooperation in discovery. As a result, parties can face months or even years of time-consuming, expensive discovery wars.
Why not use a mediator to help “referee” the discovery? Most discovery can be provided informally at much less cost. A mediator can help facilitate the discovery process to specifically target discovery needs. The mediator can help everyone conclude the case with fewer headaches and less stress for the lawyers. This results in a lower cost for the parties.
Successfully Managing the High Conflict Case
You don’t have to endure the nuclear option in a high conflict case. Mediation can be highly successful. Photo: Alex Andropov86/Pixabay
There is a common misconception that people cannot mediate high conflict cases. It’s simply not true.
Most high conflict behavior in divorce cases is based on fear and hurt. That’s because Court proceedings tend to exacerbate and actually encourage high conflict responses. So, engaging a good mediator early in the process reduces conflict by managing the fight-or-flight response.
Rather than encouraging conflict including ugly public fights in court, consider short-circuiting conflict with a mediator experienced in high conflict. If the parties learn early how to interact productively, it then makes the rest of the case go more smoothly, and often more quickly.
Use Early Intervention Through Mediation to Resolve Interim Issues
The terribly backlogged family courts sometimes take months to hear even the most routine (and sometimes pressing) interim motions. Working with you and your clients in mediation, I can help you resolve interim questions like support and custody in a fraction of the time and cost compared to filing a Request for Order. Because a mediated settlement conference efficiently resolves interim issues, the parties can relax a little more. Instead of reacting to ongoing problems, people can focus on concluding the case.
Consider a Court-Ordered Family Centered Case Resolution Plan Per Family Code Section 2451
Court ordered family centered case resolution plan under the California Family Code Section 2451 is a valuable tool in your toolkit.
One little-known Family Code provisions involves the use of Alternate Dispute Resolution (ADR) as part of a court-ordered family centered case resolution plan. It is described in Family Code Section 2451. Additionally, California Rule of Court 5.83 describes how to implement the plan. Parties can appoint a case manager as part of the plan. They can also apply Code of Civil Procedure Section 639 to appoint the case manager as a discovery referee. Further, Family Code Section 2451 (a)(3) gives protection to attorneys who follow any discovery plans adopted as part of a court-ordered family resolution plan as follows:
“Limitations on discovery, including temporary suspension pending exploration of settlement. There is a rebuttable presumption that an attorney who carries out discovery as provided in a family centered case resolution plan has fulfilled his or her duty of care to the client as to the existence of community property.”
This Family Code section 2451 procedure has been effective in my experience. It can do a lot to reduce costs, and keep the case moving quickly towards settlement.
Because there are many ADR options beyond an end-of-case settlement conference where a mediator can make a huge difference, the key is to start early. Call on Weber Dispute Resolution to help. We have the training, skills, and experience to get your family law case past stuck. Our approach serves to support existing relationships with legal counsel, and will preserve the family’s wealth by reducing family conflict. Peace of mind is priceless.
by Shawn Weber, JD, CLS-F* | Jun 4, 2018 | Uncategorized
I regularly serve as a pro tem settlement judge on the Mandatory Settlement Conference (MSC) Panel with the San Diego County Superior Court. While I enjoy helping folks through their MSCs, the help is simply too little too late for many people.
Often, the preparation for the MSC is nearly as stressful and costly as preparing for the trial itself for everyone involved including the attorneys, clients, and other professionals who may be involved.
Lawyers need to certify that discovery is complete and prepare elaborate briefs. Waiting until the very end of a case to attempt mediation does the parties and the professionals a great disservice. The pained and stressed-out expressions on the faces of the parties and counsel at the MSCs I facilitate say it all.
Better Options for Settling Cases: Early Mediation
If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay
There are many options near the beginning of the case to settle issues, manage discovery concerns, and resolve unnecessary conflict. Even (and especially) high conflict cases can benefit from earlier intervention with a mediator to short circuit the conflict. Attorneys benefit from early mediation because it helps them settle the cases with a realistic chance of settling successfully. It frees them up to focus on trials for cases that won’t settle.
Here are some ideas for how you can engage the ADR services of a mediator early in your family law case.
Meet and Confer – On Steroids
Every family law attorney is aware of the requirement for the “meet and confer” conference. Too often it’s simply given lip service by a short phone call to opposing counsel without discussing the issues. Because lawyers sometimes give less attention to what needs to happen to settle, the case stalls.
Why not have a facilitated meet and confer settlement conference to identify the issues and formulate a plan for a swift conclusion?
Discovery Management At Lower Cost
Often the most expensive part of a case is the discovery, which involves elaborate and arcane procedures to gather as much evidence as possible. Sometimes this takes place whether the case needs the information or not. The adversarial process spurs less and not more cooperation in discovery. As a result, parties can face months or even years of time-consuming, expensive discovery wars.
Why not use a mediator to help “referee” the discovery? Most discovery can be provided informally at much less cost. A mediator can help facilitate the discovery process to specifically target discovery needs. The mediator can help everyone conclude the case with fewer headaches and less stress for the lawyers. This results in a lower cost for the parties.
Successfully Managing the High Conflict Case
You don’t have to endure the nuclear option in a high conflict case. Mediation can be highly successful. Photo: Alex Andropov86/Pixabay
There is a common misconception that people cannot mediate high conflict cases. It’s simply not true.
Most high conflict behavior in divorce cases is based on fear and hurt. That’s because Court proceedings tend to exacerbate and actually encourage high conflict responses. So, engaging a good mediator early in the process reduces conflict by managing the fight-or-flight response.
Rather than encouraging conflict including ugly public fights in court, consider short-circuiting conflict with a mediator experienced in high conflict. If the parties learn early how to interact productively, it then makes the rest of the case go more smoothly, and often more quickly.
Use Early Intervention Through Mediation to Resolve Interim Issues
The terribly backlogged family courts sometimes take months to hear even the most routine (and sometimes pressing) interim motions. Working with you and your clients in mediation, I can help you resolve interim questions like support and custody in a fraction of the time and cost compared to filing a Request for Order. Because a mediated settlement conference efficiently resolves interim issues, the parties can relax a little more. Instead of reacting to ongoing problems, people can focus on concluding the case.
Consider a Court-Ordered Family Centered Case Resolution Plan Per Family Code Section 2451
Court ordered family centered case resolution plan under the California Family Code Section 2451 is a valuable tool in your toolkit.
One little-known Family Code provisions involves the use of Alternate Dispute Resolution (ADR) as part of a court-ordered family centered case resolution plan. It is described in Family Code Section 2451. Additionally, California Rule of Court 5.83 describes how to implement the plan. Parties can appoint a case manager as part of the plan. They can also apply Code of Civil Procedure Section 639 to appoint the case manager as a discovery referee. Further, Family Code Section 2451 (a)(3) gives protection to attorneys who follow any discovery plans adopted as part of a court-ordered family resolution plan as follows:
“Limitations on discovery, including temporary suspension pending exploration of settlement. There is a rebuttable presumption that an attorney who carries out discovery as provided in a family centered case resolution plan has fulfilled his or her duty of care to the client as to the existence of community property.”
This Family Code section 2451 procedure has been effective in my experience. It can do a lot to reduce costs, and keep the case moving quickly towards settlement.
Because there are many ADR options beyond an end-of-case settlement conference where a mediator can make a huge difference, the key is to start early. Call on Weber Dispute Resolution to help. We have the training, skills, and experience to get your family law case past stuck. Our approach serves to support existing relationships with legal counsel, and will preserve the family’s wealth by reducing family conflict. Peace of mind is priceless.
by Shawn Weber, JD, CLS-F* | May 17, 2018 | Uncategorized
Jennifer Lee, associate attorney with Weber Dispute Resolution, joined her colleagues from the Pan Asian Lawyers of San Diego (PALSD) at the San Diego City Council meeting on Tuesday, May 15. San Diego City Councilmember Chris Cate presented the group’s representatives with a proclamation declaring May 2018 as ‘Asian Pacific American Heritage Month.”
Lee is currently serving on the Board of Directors of PALSD as treasurer.
Jennifer Lee receives congratulations from San Diego City Councilmember Chris Cate.
Jennifer Lee has been a part of the Weber Dispute Resolution team since October 2015. She practices the “Dolphin Lawyering” philosophy. Jennifer strives to help clients reach a settlement out of court, but she is a capable litigator when necessary. She specializes in providing clients with the practical knowledge they need to make the right decisions for their family.
Jennifer understands every family is unique, using her skills to reach creative solutions and provide pragmatic representation for her clients. She brings patience, kindness, reason, and humility to every interaction. As a result, clients can trust they will be seen, heard, understood, and supported.
Jennifer speaks Mandarin Chinese and in addition to her role with the Pan Asian Lawyers of San Diego, she is an active member of the San Diego County Bar Association, San Diego Family Law Bar Association, and San Diego Chinese Attorneys Association.
by Shawn Weber, JD, CLS-F* | May 14, 2018 | Uncategorized
What is a Gavron Warning?
What is a Gavron Warning?
The idea of the “Gavron Warning” came from the case In Re Marriage of Gavron, (1988) 203 Cal.App.3d 705, 250 Cal.Rptr. 148. In this case, the parties separated in 1976 after a 25 year marriage. Subsequently, the court ordered the husband to pay $1,100 per month of alimony. He did so until 1981, when he asked the court to reduce support to $550 and then terminate entirely after one year. This initial request was denied.
However, the husband tried again in 1986. This time the court ordered that support would continue for five months and then terminate. The wife appealed and reversed the trial court’s order. The appellate court held that because the wife was not warned in prior orders to become self-sufficient, she could not be penalized years later because the court did not tell her to make efforts. In essence, as the court argued, the failure to focus her on the expectation to become self-sufficient meant that the court could not cut her support now.
Because of this case, the courts will frequently issue a warning to the supported spouse. Here is an example of a Gavron Warning:
“NOTICE: It is the goal of this state that each party will make reasonable good faith efforts to become self-supporting as provided for in Family Code section 4320. The failure to make reasonable good faith efforts may be one of the factors considered by the court as a basis for modifying or terminating spousal or partner support.”
Supporting Spouses will want the Gavron Warning included
So, the lesson for support payers is to make sure that the court includes such language in the spousal support order. If it is not, it may be harder to reduce income later if the supported spouse refuses to make good faith efforts to become self-sufficient. When I am representing a support payer, I always ask the judge for a Gavron Warning and I almost always include it in written stipulations. I will also sometimes simply file and serve a written Gavron Warning to the supported party myself at the beginning of the case so that there is no question that the supported party has been warned.
The supported spouse will likely rather not have the Gavron Warning included, but it is hard to oppose it
When I am representing a supported spouse, naturally I will not bring the Gavron Warning up. However, if opposing counsel wants it in an order, there is no legal basis to resist it. The moral for the supported spouse is not to count on the alimony as a permanent means of support.
I frequently refer the supported spouse for vocational counseling to assist with re-entering a career. I get as much alimony as I can, but encourage the prudence of planning for self-reliance. After all, no one knows for sure what the future holds. Not only could the support payer try to reduce alimony, it could simply terminate by means of death. Any changed circumstance such as unemployment or disability could force a reduction or termination in support too. The best advice is to use the support as a life preserver to stay afloat in the short run, but take steps immediately to be ready for when the support may no longer be available.
Further reading:
How California Spousal Support Works
What does California Child Support Cover?
by Shawn Weber, JD, CLS-F* | Apr 25, 2018 | Uncategorized
Divorce mediation can provide a useful alternative to working with attorneys, but there are some details you need to know to make it legally binding. Photo: MrHayata/Creative Commons License
Legally Binding Agreements Are Possible with Divorce Mediation
Frequently someone will tell me a particular family law case is not appropriate for mediation because they don’t believe they will get a legally binding agreement out of the process. This frustrates me, because it is so far from the truth. Let’s explore the key question: is divorce mediation binding? The short answer: yes. There are easy ways to make sure your divorce mediation is binding. Let’s talk about them in more detail.
Be sure you understand the limitations of a handshake agreement in mediation.
Handshake agreements are NOT binding
Often, parties to a mediation will make small agreements, or “handshake” agreements. These type of agreements will not be binding on anyone if they end up being fought over in litigation.
There are times when people mutually agree on a handshake to seal a deal to make it enforceable. Mediators sometimes employ simple handshake agreements in divorce mediation. Perhaps two parents want to agree in good faith they will pay for a child’s college tuition. But they don’t want to put themselves in a position of violating a court order if for some reason anything changes due to loss of employment or an expensive medical emergency, which would make paying for college impossible. These folks will agree in principle — or morally — they will work cooperatively to pay for college. However, such moral or handshake agreements are NOT binding.
Put your mediated agreement in writing if you intend it to be legally binding. Photo: Antonio Litterio/Wikimedia
To make divorce mediation legally binding, get it in writing
When you are ready to sign off on an enforceable agreement, get it in writing. Most attorney mediators will create the legal document for you to sign. If you are working with a non-attorney mediator, he or she will probably prepare a memorandum of understanding. You can then take this paperwork to an attorney to draft a binding document. Once all parties sign, the agreement is binding like any other contract.
Follow the Code of Civl Procedure to ensure agreement enforcement
The California Code of Civil Procedure (CCP) section 664.6 provides a way for agreements reached pending settlement to be enforced by the court. Section 664.6 provides:
“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
Sometimes when parties reach an agreement during their divorce mediation, I will write up the notes of the settlement on a legal pad and note it is a binding agreement pursuant to CCP 664.6. When the parties sign, the agreement is binding and the Court will enforce it.
Have your attorney review your mediated agreement
Before anyone signs on the dotted line, I always advise parties to have a lawyer review their agreement. As the mediator, I have to be neutral like Switzerland. This means I can’t advise you about your legal rights or your best interests without violating legal ethics. Parties should have a lawyer who can review documents and provide the necessary legal advice before signing. This reduces your risk, and guarantees everyone is making informed decisions.
Only a judge can ensure your mediated divorce settlement is legally binding and enforceable under the law.
Only a judge can make your agreement legally enforceable
It is your option to send your mediated agreement to a judge for signature. This is particularly common when you use mediation to create a final marital settlement agreement for your divorce. The mediator sends the signed agreement to the Court for the judge’s signature. Once the judge signs, the agreement becomes an order of the court. This means it is enforceable just like any other order of the court. This is the only way you can turn to the legal system in the future if someone violates any portion of the agreement.
Does mediation sound like the right process for you? Call us at 858-410-0144 to make an appointment with San Diego Divorce Mediator Shawn Weber today.
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